Canada

International Focus

Part of the ‘second-wave’ of FOI regimes, Canada’s Access to
Information Act has commonly been judged as one of the worst among its
peers – Australia, the UK, Ireland and New Zealand.

Legislation

Passed in 1982 and – on paper – relatively comparable with its counterparts, Canada’s ATI Act suffers not so much through inadequate provisions, but a lack of political will.

Canada’s legislation is slightly more restrictive in having fees
for making a request ($5); having no overriding public interest test;
in making certain of the exemptions mandatory; and in excluding all
Cabinet documents (colloquially named the ‘Mack Truck’ exemption).
Requests can only be made by Canadian residents or persons or
corporations present in Canada – full addresses must be provided in
writing and requests cannot be sent via email. The overseeing department for the ATI Act is theTreasury Board.

Operation

From the outset, FOI has had no ‘political patron’ in Canada. When
introduced, the Trudeau government never had any enthusiasm for the
Canadian legislation, and subsequent governments have suffered embarrassing FOI-related exposure. Currently, Canadian MPs’ are resisting disclosure of more detailed breakdowns of their expenses.
A request for the information from the Auditor-General has been denied,
after a 10-month delay by the all-party Board of Internal Economy,
responsible for House spending. All political parties - apart from the
Bloc Quebecois - support the Board’s decision.

Compounded with a lack of political will, Canada’s regime also
suffers the same problems as its peers – resourcing problems, a lack of
scope, limited powers of appeal bodies and delay, delay, delay. “This right [to information]
is at risk of being totally obliterated because delays threaten to
render the entire access regime irrelevant in our current information
economy,” said the interim Information Commissioner in her 2009
annual report. (For the record, cases taken to the Information
Commissioner’s Office are now taking two years.)

Government departments have been severely criticised not only for
delay but obfuscation, unsatisfactory (and illegal) processes,
unnecessary high refusal rates and inadequate staff training. The
Canadian ICO’s recent assessment of FOI compliance in a selection of
government departments found half had “a below average or inferior performance in 2008–2009.”

Recent developments

In January this year, Canadian magazine The Walrus lamented the state of FOI in an article entitled ‘The Dark Country’. It quoted University of Ottawa law professor Amir Attaran: “Compared with the US and Britain, Canada’s system of disclosure is far inferior.”
A 2008 study by the Canadian Journalists’ Association and the Canadian
Newspaper Association ranked Canada’s law behind those of India,
Mexico, and Pakistan. It was factors such as the limited powers of the
Information Commissioner (unable to order disclosure) and limited scope
(many government quangos are not covered) that led to such an
assessment. Former information commissioner Robert Marleau says, “There’s less information being released by government than ever before.”

More recently, political leaders in Canada have promised to revamp
the Act and restore faith in government through being more committed to
transparency. It is widely agreed that the Act needs updating; it has been reviewed many times since it was passed
and many common ideas for reforms have been floated – restricting
exclusions and exemptions from the Act’s coverage and reducing the
provision of mandatory statutory exemptions. In 2006 the government
passed the Federal Accountability Act which extended the scope of the
FOI regime to include some Officers of Parliament and Crown
corporations. It also added a ‘duty to assist clause’ to the Act,
requiring institution to help requesters clarify requests and get the
information in the desired format. But disagreement remains – over
whether MPs’ and the judiciary should be covered, the status of cabinet
documents, the role of the Information Commissioner and even what the
Act should be called.

While discussion documents, consultations and draft bills continue
to roll out, reform-advocates have felt dismissed: DemocracyWatch lists
the eight broken promises of the Harper Government;
Last October, Justice Minister Rob Nicholson rejected a recommendation
of a House of Commons committee that the ATI law undergo a overhaul, despite intense lobbying for the Information Commissioner: “
More than ever, the Act needs to be strengthened to reflect the
realities that have taken shape since its adoption, and now is the time
for action .”